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Monday, 22 August 2016

‘Can’t deny tax relief to buyer if builder delays flat delivery’

There
is no capital gains tax if the purchase price of the residential house in which
the reinvestment is made exceeds the sale proceeds.

MUMBAI:
The Mumbai bench of the Income-Tax Appellate Tribunal (ITAT) has held that a
taxpayer cannot be denied investment-related tax benefits if due to a builder's
fault the taxpayer does not get timely possession of a house in which the
reinvestment was made.

The
Income-Tax Act provides for benefits relating to capital gains tax, where sale
proceeds of any asset other than a house (section 54F) or sale proceeds of a
house (section 54) are reinvested in a residential house property in India.

There
is no capital gains tax if the purchase price of the residential house in which
the reinvestment is made exceeds the sale proceeds. In other cases, the capital
gains, and thus the tax outgo, is proportionately reduced.

There
are conditions to be eligible for such tax-breaks. The original asset (or
house) that has been sold must have been held by the taxpayer for more than
three years (long-term capital asset). Also, the residential house property in
which money is being reinvested has to be purchased within the specified period.

At
times, the house is not available for possession within the agreed time.
Projects get stalled as builders have not got permission or have run out of
funds. This is common in Mumbai, Noida and Gurgaon, and results in the buyer
losing tax benefits.

Kanu
Chokshi, managing partner at Chokshi & Chokshi, a firm of chartered
accountants, said, "This judgement will help taxpayers claim exemption
under sections 54F and 54, even where agreements are not executed with the
builder and investment is made against an allotment letter, provided that the
reinvestment is made within the stipulated time."

Rajeev
B Shah had filed an appeal with ITAT, which adjudicates I-T disputes, as his
claim under section 54F was rejected by the authorities during tax assessment.
The I-T authorities said the residential flat in which the reinvestment was
made was incomplete and the registration document was not filed by the taxpayer.

Section
54F requires that reinvestment in the residential house property, by way of purchase,
subsequent to the sale of the original asset, must be within two years.

Shah
had sold a plot in Rajkot, Gujarat, and reinvested in a residential flat which
was under construction in La Citadel, being developed by Seth Developers and
Poonam Builders.

Shah
appealed to ITAT that the builder had been avoiding customers due to disputes
and the project was stalled. He had also filed a civil suit against the builder
and the matter was pending in the Bombay high court.

ITAT,
in its order of July 8, ruled in favour of Shah and held that "the
intention of the taxpayer is very clear, he has invested almost the entire sale
consideration of land towards purchase of this residential flat. It is almost
impossible for the taxpayer to complete other formalities, such as taking over
possession for getting the flat registered in his name. This cannot be the
reason for denying the taxpayer's claim for tax benefit."